Citation Nr: 0104813
Decision Date: 02/15/01 Archive Date: 02/20/01
DOCKET NO. 98-13 152 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for ischemic heart
disease.
2. Entitlement to service connection for irritable bowel
syndrome.
3. Entitlement to service connection for emphysema, claimed
as a residual of malnutrition.
4. Entitlement to a disability rating in excess of 70
percent for service-connected post traumatic stress disorder
(PTSD), on appeal from the initial grant of service
connection.
5. Entitlement to a disability rating in excess of 10
percent for service-connected peripheral neuropathy of the
right lower extremity, on appeal from the initial grant of
service connection.
6. Entitlement to a disability rating in excess of 10
percent for service-connected peripheral neuropathy of the
left lower extremity, on appeal from the initial grant of
service connection.
REPRESENTATION
Appellant represented by: American Defenders of Bataan
and Corregidor, Inc.
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
INTRODUCTION
The veteran served on active duty from April 1934 to June
1954. He was a prisoner of war of the Japanese government
from May 1942 to September 1945.
This matter arises before the Board of Veterans' Appeals
(Board) from a March 1998 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, that granted entitlement to service connection
for PTSD and peripheral neuropathy of both legs, evaluated as
30 percent disabling and noncompensable, respectively,
effective from September 16, 1997. The RO also denied
entitlement to service connection for ischemic heart disease,
irritable bowel syndrome, residuals of malnutrition, and
traumatic arthritis of the back.
In January 2000, the Board remanded the case to comply with
due process considerations, including to afford the veteran a
hearing before a member of the Board. However, he indicated
in February 2000 that he did not want such a hearing.
By means of a June 2000 rating decision, the RO granted
entitlement to service connection for traumatic arthritis of
the lumbar, dorsal, and cervical spine and assigned a 70
percent disability rating for service-connected PTSD, a 10
percent disability rating for service-connected peripheral
neuropathy of the right lower extremity, and a 10 percent
disability rating for service-connected peripheral neuropathy
of the left lower extremity, effective from September 16,
1997. The RO's action granting service connection for
traumatic arthritis of the spine was a full grant of the
benefit sought, and that there is no longer an outstanding
issue of fact or law pertaining to this claim.
FINDINGS OF FACT
1. In February 2001, prior to the promulgation of a decision
in the appeal, the Board received notification from the
veteran that he wanted to withdraw his appeal concerning the
claims of entitlement to service connection for ischemic
heart disease, irritable bowel syndrome, and emphysema,
claimed as a residual of malnutrition.
2. In February 2001, before a timely substantive appeal was
filed, the Board received notification from the veteran that
he wanted to withdraw his notice of disagreement (NOD)
concerning the claims of entitlement to higher ratings for
PTSD and peripheral neuropathy of the right and left lower
extremities.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal by
the appellant of the claims of entitlement to service
connection for ischemic heart disease, irritable bowel
syndrome, and emphysema, claimed as a residual of
malnutrition, have been met. 38 C.F.R. §§ 20.200, 20.202,
20.204(b), (c) (2000).
2. The criteria for withdrawal of a NOD by the appellant of
the claims of entitlement to disability ratings in excess of
70 percent for service-connected PTSD, in excess of 10
percent for service-connected peripheral neuropathy of the
right lower extremity, and in excess of 10 percent for
service-connected peripheral neuropathy of the left lower
extremity, on appeal from the initial grants of service
connection, have been met. 38 C.F.R. §§ 20.200, 20.201,
20.204(a), (c) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
In March 1998, the RO granted the veteran entitlement to
service connection for PTSD and peripheral neuropathy,
evaluated as 30 percent disabling and noncompensable,
respectively, effective from September 16, 1997. The RO also
denied entitlement to service connection for ischemic heart
disease, irritable bowel syndrome, and residuals of
malnutrition. The veteran was notified of the RO's decision
by letter dated March 12, 1998. Later that month, he
submitted an NOD with the RO's decision denying service
connection for ischemic heart disease, irritable bowel
syndrome, and residuals of malnutrition. A statement of the
case (SOC) addressing these claims was issued on March 30,
1998. In April 1998, the veteran submitted an NOD with the
RO's decision that assigned 30 percent and noncompensable
disability ratings for his PTSD and peripheral neuropathy,
respectively. He also submitted a substantive appeal to the
RO in August 1998, concerning the claims for service
connection for ischemic heart disease, irritable bowel
syndrome, and residuals of malnutrition.
In January 2000, the Board remanded the case to comply with
due process considerations, including to furnish the veteran
an SOC on the issues of higher evaluations for PTSD and
bilateral peripheral neuropathy. By means of a June 2000
rating decision, the RO assigned a 70 percent disability
rating for service-connected PTSD, a 10 percent disability
rating for service-connected peripheral neuropathy of the
right lower extremity, and a 10 percent disability rating for
service-connected peripheral neuropathy of the left lower
extremity, effective from September 16, 1997. A
supplemental statement of the case addressing these claims
was issued on June 22, 2000.
In a signed statement dated July 2, 2000, and received at the
Board in February 2001, the veteran stated that he withdrew
all pending issues from consideration.
II. Legal analysis
The steps to be taken to perfect an appeal to the Board
following an adverse determination by an agency of original
jurisdiction are set out fully in statute and regulations.
"Appellate review will be initiated by a Notice of
Disagreement and completed by a substantive appeal after a
Statement of the Case is furnished as prescribed in this
section." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R.
§ 20.200 (2000).
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A notice of disagreement may
be withdrawn in writing before a timely substantive appeal is
filed. See 38 C.F.R. §§ 20.201, 20.204(a) (2000). A
substantive appeal may be withdrawn in writing at any time
before the Board promulgates a decision. See 38 C.F.R.
§§ 20.202, 20.204(b) (2000). Withdrawal may be made by the
appellant or by his or her authorized representative, except
that a representative may not withdraw either a notice of
disagreement or substantive appeal filed by the appellant
personally without the express written consent of the
appellant. 38 C.F.R. § 20.204(c) (2000).
In a signed statement received at the Board in February 2001,
the veteran stated that he withdrew all pending issues from
consideration. This is sufficient to withdraw the pending
issues on appeal. The veteran has withdrawn his substantive
appeal concerning the claims for service connection for
ischemic heart disease, irritable bowel syndrome, and
emphysema, claimed as a residual of malnutrition, and his NOD
concerning the claims for higher ratings for PTSD and
peripheral neuropathy of the lower extremities. Hence, there
remain no allegations of errors of fact or law for appellate
consideration. Accordingly, the Board does not have
jurisdiction to review the appeal and it is dismissed.
ORDER
The veteran having withdrawn his appeal, the claim of
entitlement to service connection for ischemic heart disease
is dismissed.
The veteran having withdrawn his appeal, the claim of
entitlement to service connection for irritable bowel
syndrome is dismissed.
The veteran having withdrawn his appeal, the claim of
entitlement to service connection for emphysema, claimed as a
residual of malnutrition, is dismissed.
The veteran having withdrawn his notice of disagreement, the
claim of entitlement to a disability rating in excess of 70
percent for service-connected PTSD, on appeal from the
initial grant of service connection, is dismissed.
The veteran having withdrawn his notice of disagreement, the
claim of entitlement to a disability rating in excess of 10
percent for service-connected peripheral neuropathy of the
right lower extremity, on appeal from the initial grant of
service connection, is dismissed.
The veteran having withdrawn his notice of disagreement, the
claim of entitlement to a disability rating in excess of 10
percent for service-connected peripheral neuropathy of the
left lower extremity, on appeal from the initial grant of
service connection, is dismissed.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals